Citation Nr: 0200231
Decision Date: 01/09/02 Archive Date: 01/16/02
DOCKET NO. 99-22 182 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for right knee
disability.
2. Entitlement to service connection for psychiatric
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and A.F. (daughter)
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1945 to
December 1946.
This appeal comes before the Board of Veterans' Appeals
(Board) from a June 1998 rating decision of the Department of
Veterans Affairs (VA) Regional Office & Insurance Center (RO)
in Philadelphia, Pennsylvania. In January 2000, the veteran
and his daughter testified before a Decision Review Officer
at a videoconference hearing. A transcript of that hearing
is of record.
The issue of entitlement to service connection for
psychiatric disability is addressed in the remand that
follows the order section of this decision.
FINDINGS OF FACT
1. All available information and evidence necessary for an
equitable disposition of the issue decided herein has been
obtained by the RO.
2. The veteran has no current right knee disability.
CONCLUSION OF LAW
Right knee disability was not incurred in or aggravated by
active service. 38 U.S.C.A. § 1110 (West Supp. 2001);
38 C.F.R. § 3.303 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
Initially, the Board notes that during the pendency of the
appellant's appeal , the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. In addition regulations implementing the
VCAA (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West Supp. 2001)), were published at
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326).
The VCAA and the implementing regulations pertinent to the
issue on appeal are liberalizing and are therefore applicable
to the issue on appeal. See Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991).
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
The record reflects that through information letters, a
rating decision, the statement of the case and supplemental
statements of the case, the RO has informed the veteran of
the legal criteria for the benefit sought on appeal, the
evidence considered in connection with his claim, the
evidence potentially probative of such claim, and the basis
for the denial of the claim.
In addition, the RO has attempted to obtain the veteran's
service medical records and alternative service records, but
the only available service medical record is the report of
the veteran's separation examination. The other service
medical records were presumably destroyed by fire at the at
the National Personnel Records Center in St. Louis. In
addition, no alternative records are available from the
Office of the Surgeon General. The veteran has alleged that
he underwent private treatment for his right knee in
approximately 1947 or 1948, but has also indicated that the
physicians who provided this treatment are deceased. He has
not identified any alternative source for their records nor
has he identified any other post-service treatment or
evaluation for his right knee. Finally, the Board notes that
the veteran has been provided a VA examination to determine
the nature of any currently present right knee disability.
In sum, the facts relevant to this claim have been properly
developed and there is no further action to be undertaken to
comply with the provisions of the VCAA and the implementing
regulations.
II. Factual Background
The report of the veteran's November 1946 examination for
discharge documents no complaint or history pertaining to the
veteran's right knee. It shows that no musculoskeletal
defect was found on physical examination.
There is no post-service medical evidence of record
documenting treatment for the veteran's right knee. With the
exception of the report of a January 1998 VA examination,
there is no post-service medical evidence of record
documenting any diagnosis, complaint or abnormal finding
pertaining to the veteran's right knee.
The report of the January 1998 VA examination notes that the
veteran gave a history of falling from a truck and injuring
his right knee while serving in Japan. The veteran indicated
that he was seen at a dispensary and was given a medical
profile for three to four months. During this time, the
right knee was reportedly painful and unstable. His history
was also positive for a cerebral vascular accident
approximately four or five years prior to the VA examination.
Currently, the veteran complained of soreness in the right
knee with occasional pain and numbness. Based upon the
history reported by the veteran and the findings on physical
examination, the examiner stated that it appeared the veteran
had had an injury to his right knee with symptoms in the
past, which were overlaid by the residuals of a cerebral
vascular accident. An X-ray study of the right knee was
negative. The diagnosis was cerebral vascular accident with
residual right side involvement and normal X-ray of right
knee.
A June 1999 statement from the veteran notes that while in
service, he had slipped getting out of a truck and fallen
down, crushing both his shins. He reportedly saw a doctor
for his injury, and still had an indentation on his legs from
the fall.
In January 2000, the veteran and his daughter testified
before a Decision Review Officer at videoconference hearing.
The veteran reported that he had fallen out of a truck while
in Japan and hurt his leg. He sought treatment at a
dispensary and was given aspirin. The veteran testified that
no diagnosis was given, and he was sent back to work without
restriction. In addition, the veteran stated that he was not
subsequently treated in service for his right knee, but did
experience soreness and swelling. In approximately 1947 or
1948, an X-ray by a private physician disclosed an old
fracture of his knee. He was given pain medication.
III. Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. When a
condition noted during service is not shown to be chronic, or
the fact of chronicity in service is not adequately
supported, then a showing of continuity of symptomatology
after discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
A determination of direct service connection requires: (1) a
medical diagnosis of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between an in-service injury or disease
and the current disability. Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West Supp. 2001).
The Board will assume for the purpose of this decision that
the veteran injured his right knee in service as claimed;
however, the report of his discharge examination shows that
his right knee was found to be normal, the veteran has not
alleged that he has received any treatment for his right knee
since the 1940's, there is no post-service medical evidence
showing that he has been found to have a right knee disorder,
and the January 1998 VA examination disclosed no current
right knee disability. In essence the evidence of current
right knee disability is limited to the veteran's own
statements. His statements are not competent evidence of
current right knee disability since lay persons are not
qualified to render a medical diagnosis or an opinion
requiring medical expertise. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Accordingly, the Board must
conclude that the preponderance of the evidence is against
the veteran's claim.
ORDER
Entitlement to service connection for right knee disability
is denied.
REMAND
With respect to the veteran's claim for service connection
for psychiatric disability, the Board notes that an October
1998 VA outpatient record reflects that the veteran was found
to have a generalized anxiety disorder, which was, "as
likely as not associated to active duty stress in post-war
Japan." However, the health care provider did not
adequately support this conclusion, nor is there any
indication that the conclusion was reached after a review of
the veteran's pertinent medical records. Therefore, this
medical opinion is not adequate for adjudication purposes.
Although the veteran was provided a VA psychiatric
examination for compensation purposes in February 1998, the
examiner did not provide an opinion concerning the etiology
of generalized anxiety disorder diagnosed on the examination.
In light of these circumstances, the Board has concluded that
further development is required to comply with the VCAA and
the implementing regulations. Accordingly, the case is
REMANDED to the RO for the following action:
1. The RO should request the veteran to
provide the names, addresses and
approximate dates of treatment for all VA
and non-VA health care providers who have
treated or evaluated him for any
psychiatric disorder since October 1999.
When the requested information and any
necessary authorization are received, the
RO should attempt to obtain a copy of all
indicated records.
2. If the RO is unable to obtain a copy
of any records identified by the veteran,
it should so inform the veteran and his
representative and request them to
provide a copy of the outstanding
records.
3. Thereafter, the veteran should be
scheduled for a VA examination by a
psychiatrist to determine the nature,
extent and etiology of any currently
present acquired psychiatric disorders.
Before completion of the examination
report, the examiner must review the
claims folder. Such review should be
documented for the record. Any indicated
studies should be performed. Based upon
the examination results and the review of
the claims folder, the examiner should
answer the following questions:
With respect to each currently
present acquired psychiatric
disorder, is it is at least as
likely as not that the disorder was
present during the veteran's
military service and, if so, did the
disorder clearly and unmistakably
exist prior to the veteran's
military service?
With respect to any currently
present psychiatric disorder which
the examiner believes existed prior
to the veteran's military service,
is it at least as likely as not that
the disorder increased in severity
during the veteran's military
service and, if so, was the increase
clearly and unmistakably due to
natural progress?
With respect to any currently
present psychiatric disorder which
the examiner believes was not
present during the veteran's
military service, is it at least as
likely as not that the disorder is
etiologically related to the
veteran's military service?
The rationale for all opinions expressed
must also be provided. If post-traumatic
stress disorder is diagnosed, the
specific stressor(s) supporting the
diagnosis must be identified.
4. The RO should then undertake any
other indicated development, to include
any indicated stressor verification if
post-traumatic stress disorder is
diagnosed.
5. The RO should then readjudicate the
veteran's claim for service connection
for psychiatric disability. If the
benefit sought on appeal is not granted
to the veteran's satisfaction, he and his
representative should be furnished a
supplemental statement of the case and
afforded the requisite opportunity to
respond. The case should then be
returned to the Board for further
appellate consideration, if otherwise in
order.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. By this remand the Board intimates no opinion as
to any final outcome warranted. No action is required of the
veteran until he is otherwise notified by the RO.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Shane A. Durkin
Member, Board of Veterans' Appeals